Supreme Court narrows scope of EPA water protections

The Supreme Court has narrowed which waters are subject to federal protections under the Clean Water Act, limiting the Environmental Protection Agency’s authority in terms of where it can implement safeguards.

In the decision, the court ruled that in order for a wetland to receive protection, it needs to have a “continuous surface connection” with a protected body of water, making the two areas “indistinguishable” from one another.

In addition — it narrows the definition of which of those other waters can be protected, saying that regulations  apply only to those that are “relatively permanent, standing or continuously flowing.”

The opinion was authored by Justice Samuel Alito, who was joined by a majority of his fellow conservatives: John Roberts, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett. 

The opinion overturned a lower court decision that used a different standard, ruling that certain wetlands did merit Clean Water Act protections because they had an ecologically “significant nexus” to other protected waters.

The judgment overturned that case, in favor of Idaho landowners Michael and Chantell Sackett, who had previously been prevented from building a home on land they owned because it contained wetlands. 

While all nine justices agreed that the case should be overturned, they differed as to what the standard should be for protecting wetlands moving forward. 

In two separate concurring opinions, one from conservative Justice Brett Kavanaugh and another authored by liberal justice Elena Kagan, who was joined by Sonia Sotomayor and Ketanji Brown Jackson, the four argued that protected waters should also include those that are separated from protected water by something like a man-made barrier.

Mark Ryan, a former Clean Water Act litigation specialist at the Environmental Protection Agency (EPA), told The Hill that the ruling could result in some of the nation’s wetlands being filled out of existence. 

“If you’re a developer and you buy a piece of farmland that had a bunch of wetlands on it that weren’t right next to the river…you could just go out and start filling those wetlands now. You don’t need a permit unless the state requires it,” Ryan said. 

“We’re probably going to lose a lot of wetlands and wetlands serve an important function in society,” he added. “They absorb floodwaters, they filter water, they provide habitat for birds and animals.”

Ryan also noted that the other provisions of the decision — those that narrow the definition of Waters of the U.S. to waters that are at least relatively permanent — are also likely to have major implications. 

“This is a…gigantic shift in what the Clean Water Act means,” he said. “In the states of Arizona and New Mexico, there are very few rivers that flow on a regular basis.”

In justifying his Thursday decision, Alito wrote that he was seeking to “harmonize” the law’s reference to adjacent wetlands with the concept of Waters of the United States. 

These wetlands must qualify as ‘waters of the United States’ in their own right. In other words, they must be indistinguishably part of a body of water that itself constitutes “waters” under the [Clean Water Act.],” he wrote.

In his own disagreement opinion, however, Kavanaugh warned of impacts on water quality and flood control. 

“By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” he wrote. 

The decision follows the Supreme Court’s move last year to narrow the EPA’s powers under the Clean Air Act, cementing another limit to the federal government’s authority to regulate business impact on the environment.

EPA Administrator Michael Regan in a written statement said that he was “disappointed” by the court’s decision, saying it “erodes longstanding clean water protections.”

He did not directly lay out the implications for the agency’s water regulations, but said that the administration worked to set up a “durable” definition of “waters of the United States” and said that the agency would carefully review the decision to consider its next steps. 

However, many Republicans cheered the ruling. In a written statement, Sen. Shelley Moore Capito (R-W.Va.) said that it was a broader sign that the Biden administration was going too far with its environmental regulations. 

“Today, the Supreme Court sent a loud and clear warning shot to the Biden administration about its attempts to overregulate the lives of millions of Americans,” she said in a written statement. “By rejecting the ‘significant nexus’ test, the Court protected America’s farmers, ranchers, builders, and landowners from overreach under the Clean Water Act, and ruled President Biden’s recent WOTUS rule goes too far.”

“We already knew the EPA’s recent regulatory actions were harmful to American consumers, workers, and employers, but with two straight losses in major environmental cases ….the Court has confirmed the Biden administration’s pattern of environmental overreach is illegal,” she added.

Senate Majority Leader Chuck Schumer (D-N.Y.), meanwhile, criticized the court’s decision in a tweet. 

“This MAGA Supreme Court is continuing to erode our country’s environmental laws.

Make no mistake—this ruling will mean more polluted water, and more destruction of wetlands,” he wrote.  “We’ll keep fighting to protect our waters.”

Updated 2:01 p.m.